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Mandatory Subpoena's

A subpoena is a powerful tool provided to attorneys. With it, you can force an individual to appear before you or the court, or to provide documents to further the discovery process. There is also an intimidation factor with a subpoena. Being required to answer a series of questions from the other side who is scrutinizing your every answer, looking to paint you as the “bad guy”, can certainly have a negative effect on the person who was subpoenaed. However, a specific set of rules are in place to make sure a subpoena is properly issued and the power behind it isn’t abused.

Florida has designated several statues that dictate how a subpoena should be served and what all must be done before a witness is compelled to adhere to the subpoena. In the world of foreclosure law, oftentimes these rules are ignored. While a subpoena may be served on you for a variety of reasons, each subpoena must be accompanied by a witness appearance fee. Florida Statute 92.142 states very clearly that “Witnesses in all cases, civil and criminal, in all courts, now or hereafter created, and witnesses summoned before any arbitrator or general or special magistrate appointed by the court shall receive for each day’s actual attendance $5 and also 6 cents per mile for actual distance traveled to and from the courts.”

Combined with Florida Statute 92.151, which states “Compensation shall be paid to the witness by the party in whose behalf the witness is summoned…but no person shall be compelled to attend court as a witness in any civil cause unless the party in whose behalf the person is summoned shall first pay the person the amount of compensation to which he or she would be entitled for mileage and per diem for 1 day, or the same is deposited with the executive officer of said court, and the person shall not be compelled to attend thereafter unless paid in advance.”

These two statutes create an affirmative duty on the attorney who sends a subpoena to make sure the witness is paid prior to being forced to attend the event. In foreclosures, we often see subpoenas issued to force a borrower to attend a trial and possibly testify in a way that may hurt their case. While there is nothing inherently wrong with a subpoena, without an attorney defending you, the other side may abuse the subpoena power without following the rules. If you have been served with a subpoena or are facing foreclosure, feel free to contact Loan Lawyers. We may be able to assist you in retaining your home.